themselves, and take effect in their lifetime; others are made through the intervention of the court, or of some public officer acting by its direction; and others not to take effect until after the death of the party making them, which is the case of devises by a last will and testament.

It is more convenient to treat, in subsequent successive chapters, of these three kinds of common assurance.

CHAPTER V.

OF THE ALIENATION OF REAL ESTATE BY THE VOLUNTARY ACT OF THE PARTIES INTER VIVOS.

SECTION I.

Of Alienation by Deed.

A deed, as defined by the elementary writers, is a writing or instrument, written on paper or parchment, sealed and delivered, to prove and testify the agreement of the parties whose deed it is, to the things contained therein. (Shep. Touch. 50.) Coke says it is an instrument consisting of three things, viz: writing, sealing and delivery, comprehending a bargain or contract between party and party, man or woman. (Co. Litt. 171 b.) And Blackstone more briefly defines it, as a writing sealed and delivered by the parties.

It is said to be called a deed, in latin factum, because it is the most solemn and authentic act that a man can perform, with relation to the disposal of his property. We have seen, in a previous chapter, that a man is estopped by his deed, and not permitted to aver and prove any thing to the contrary. Deeds at common law were of two kinds, 1, deed poll, which is executed only by the grantor, and 2, deeds indented. The latter are often called indentures. An indenture is an agreement between two or more persons, whereof each party has usually a part. That part which is executed by the grantor is usually called the original, and the rest are counterparts. With us, most frequently, all the parties execute every part, which renders them all originals. The practice which formerly prevailed here, was to cut the paper or parchment on which an indenture was written in an undulating line. This, in the time of Lord Coke, was deemed indispensable to an indenture.

(Co. Litt. 229 a.) A deed poll was shaved even across the top. But these formalities are obsolete, and have long since ceased to be deemed of any importance.

The New York revised statutes abolished the mode of conveying lands by feoffment with livery of seisin; (1 R. S. 738, § 136;) and all fines and common recoveries. (2 id. 343, § 24.) They doubtless intended to substitute a grant for the former modes of assurance. And hence they enacted that every grant in fee of a freehold estate shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery, according to the provisions of the revised statutes, its execution and delivery must be attested by at least one witness; or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so acknowledged. (1 id. 738, § 137.) It is, however, well settled by the courts, that whether acknowledged or attested by a subscribing witness or not, it is valid between the parties, and takes effect, as to prior incumbrancers, at the time of its execution. (Wood v. Chapin, 3 Kern. 509. Voorhees v. Presbyterian Church of Amsterdam, 17 Barb. 108, per Hand, J.)

At common law, a grant was the name of a conveyance of incorporeal hereditaments. They were said to lie in grant, as lands and tenements were said to lie in livery. The legislature adopted the name grant, and applied it to the instrument intended for the conveyance of a fee, or a freehold estate; and the act declares that it shall take effect so as to vest the estate or interest intended to be conveyed, only from its delivery; and all the rules of law in force, at the adoption of the revision, (1830,) in respect to the delivery of deeds, were declared to be applicable to grants thereafter to be executed. (1 R. S. 738, § 138.)

Prior to 1788, the most usual mode of the conveyance of land in this state, was by lease and release. On the declaration, in that year, by the act for the amendment of the law, and the better advancement of justice, that from and after the first day of May, 1788, none of the statutes of England or of Great Britain should operate or be considered as law of this state, (2 Greenl. 116, § 37,) that form of conveyance immediately fell into disuse, and the conveyance by bargain and sale took its place, and has ever since been the most frequent mode of alienation amongst us, and was the one principally in use at the time the statutes were revised, in 1830.

The conveyance by lease and release was, however, occasionally employed. And hence, the statute provided that deeds of bargain and sale, and of lease and release, might continue to be used, and be deemed grants, and subject to all the provisions in the statute concerning grants. The statute also declared that no covenants shall be implied in any conveyance of real estate, whether such conveyance contains covenants or not, and that lineal and collateral warranties, with all their incidents, should be abolished. The statute contains suitable provision for subjecting heirs and devisees to a liability upon the covenants and agreements of their ancestor or devisor to the extent of the lands descended and devised, which will be noticed in their proper place. (1 R. S. 739, §§ 141, 142.)

Although the statute evidently gave a preference to a grant as the mode of passing the title to the fee and freehold, so that there need be but one form of conveyance, and that applicable to both corporeal and incorporeal hereditaments, it did not abrogate any other mode of conveyance known to the law before, except the feoffment, and conveyances by fine and recovery. It expressly, as before observed, retained the bargain and sale, and lease and release; and by necessary consequence, left all other forms of alienation as they were before. Hence deeds of surrender, assignment, confirmation, exchange, &c. may still be used, if desired by the parties. It would seem, however, that a grant would be equally effective, and supersede the necessity of any other form. No greater estate can be made to pass by it, than the grantor possessed at the time and could lawfully convey; and it is conclusive against him and his heirs claiming under him by descent. It is also conclusive against subsequent purchasers from the grantor or from his heirs claiming as such, except a subsequent purchaser in good faith and for a valuable consideration, who shall acquire a superior title by a conveyance that shall have been first recorded. (1 R. S. 739, §§ 143, 144.)

Our examination of the law in relation to conveyances of real estate is not much abridged by the revised statutes. The doctrine in relation to the circumstances necessary to constitute a valid deed is the same which formerly prevailed. The conveyance itself, whether it be in form a grant, under our statute, or a bargain and sale, is still denominated, in common parlance, a deed; and it will so continue to be called for ages to come. Very little, if any thing, has been gained by the change of name of the conveyance;

or by the substitution of an instrument, originally designed for the transfer of incorporeal interests, as a conveyance of corporeal hereditaments. Hence it is proper, in the further consideration of this subject, to inquire into the circumstances necessary to the valid execution of deeds. In this sense, a grant is a deed, and requires the like formalities for its validity.

All deeds, whether deriving their effect from the common law, or from the statute of uses, do immediately upon their execution by the grantor devest the estate out of him, and put it in the party to whom the conveyance is made, though in his absence, and without his knowledge, till some disagreement to such estate appears. (1 R. S. 738, § 138. Cruise's Dig. tit. 32, ch. 1, § 25. Cunningham v. Freeborn, 11 Wend. 240. Jackson v. Bodle, 20 John. 184, 187.) This doctrine is founded upon the principle that the assent of the party who takes may be implied; 1st, from the beneficial nature of the instrument; 2d, from the incongruity that would arise from a perfect execution on the part of the grantor, which cannot be if the estate still remains in him; and 3d, unless it so vests, there would be an uncertainty as to where the freehold was vested. The New York statute, as explained in Cunningham v. Freeborn, (supra,) seems to take this view of the subject. If the conveyance casts a burden on the grantee which he desires not to assume, there can be no doubt that he can decline to accept. There can be no valid delivery without an acceptance, though the presumption is in favor of the latter when the first is proved. (Jackson v. Phipps, 12 John. 418, 422.)

The practice is quite common of entering into articles of agreement, preparatory to the execution of a formal deed, where the one party has agreed to purchase, and the other to sell, any real estate. This article contains a memorandum of the agreement, in which the mutual stipulations of the parties are set forth with more or less formality. Such articles contain a trust which courts of equity will enforce by a specific execution of the agreement. It is, therefore, important that they be drawn with care, and contain, with reasonable certainty, the agreement of the parties. Under the New York revised statutes a contract for the sale of lands is void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party by whom the sale is to be made, or by his agent lawfully authorized. And where the contract has not been signed, either by

the vendor or his agent, it is not binding upon the vendee, although he has subscribed the same. The authority of the agent is not required to be in writing by the statute of frauds. If lawfully authorized by parol, he can bind his principal by a valid signing of the executory contract. (2 R. S. 134, § 8, et seq. McWhorter v. McMahan, 10 Paige, 386. Townsend v. Hubbard, 4 Hill, 351.) The statute does not require an executory agreement for the conveyance of land at a future day, to be under the seal of any of the parties. It is good and obligatory, whether it be under seal or not.

SECTION II.

Of the requirements essential to a Deed.

Our remarks under this section are applicable to grants, and to all other instruments in writing and under seal, which fall within the appropriate definition of a deed.

From the definition of a deed, given in the preceding section, and from a reference to the revised statutes, on the subject of alienation by deed, it is obvious, that the following circumstances are essential to a deed: 1. Proper parties and subject matter. 2. A good and sufficient consideration. 3. Writing on paper or parchment. 4. Words sufficient to express the agreement, legally and orderly set forth. 5. Reading, if desired. 6. Sealing and signing. 7. Delivery. 8. Attestation by witnesses. 9. Acknowledging, or proving. 10. Recording in the proper county, and in the proper book.

1. The parties to a deed may be either natural persons, or artificial, as a corporation. With respect to the first, as a general rule, it may be laid down that all persons who have attained the age of twenty-one years, of sound mind and understanding, and are not under any legal disability, may convey to others whatever interest they have in real estate. Though such person be blind, deaf or dumb, he can convey his land by deed. Those infirmities do not prevent a party from making a will. (Willard on Executors, 69, 70.) And on the same principle they will not disable the owner from conveying his estate inter vivos. Though born deaf and dumb, and having continued so from his nativity, he is still capable of executing a deed, if of sufficient capacity. (Brown v. Brown, 3 Conn. 299.) In cases of this kind, and indeed in all cases where the mental capacity is in any respect doubtful, care should be